November 20, 2018
Three Democratic senators filed a lawsuit on November 19 in the U.S. District Court for the District of Columbia challenging the appointment of Acting Attorney General Matt Whitaker, and in doing so, ratcheting up the court effort to declare his placement atop the Justice Department as unconstitutional, CNN reported.
Senators Richard Blumenthal of Connecticut, Sheldon Whitehouse of Rhode Island and Mazie Hirono of Hawaii filed the suit, represented by the groups Protect Democracy and the Constitutional Accountability Center.
The lawsuit is only the latest challenge to Whitaker’s appointment to replace former AG Jeff Sessions after President Donald Trump fired his attorney general the day after the election.
In a joint statement, the senators said, “On November 7, President Trump appointed Whitaker to oversee the Department of Justice–including the Special Counsel’s investigation—in violation of the Constitution’s Appointments Clause. The Senators’ complaint asks the Court to declare Whitaker’s appointment unconstitutional and to enjoin him from serving as, or carrying out the duties of, Acting Attorney General.”
Senator Blumenthal personally commented, “Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it. Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays.”
He said. “President Trump is denying Senators our constitutional obligation and opportunity to do our job: scrutinizing the nomination of our nation’s top law enforcement official. The reason is simple: Whitaker would never pass the advice and consent test. In selecting a so-called “constitutional nobody” and thwarting every Senator’s constitutional duty, Trump leaves us no choice but to seek recourse through the courts.”
For his part, Senator Whitehouse noted, “The stakes are too high to allow the president to install an unconfirmed lackey to lead the Department of Justice – a lackey whose stated purpose, apparently, is undermining a major investigation into the president. Unless the courts intercede, this troubling move creates a plain road map for persistent and deliberate evasion by the executive branch of the Senate’s constitutionally mandated advice and consent. Indeed, this appointment appears planned to accomplish that goal.”
Senator Hirono, an outspoken opponent of the administration, stated, “Donald Trump cannot subvert the Constitution to protect himself and evade accountability. We want the court to make clear that the Senate must confirm Matthew Whitaker’s appointment as Acting Attorney General—otherwise this temporary appointment violates the Constitution’s Appointments Clause. Without exception for President Trump’s allies, principal officers who report directly to the president must be subject to a hearing and confirmed by the Senate.”
Last week, the Justice Department issued a memo defending Whitaker’s appointment, concluding that it was legally justified under the Vacancies Reform Act.
The Senate Democrats’ lawsuit, however, argues that his appointment his unconstitutional under the Constitution’s Appointments Clause requiring Senate confirmation of high-level federal appointees, CNN reported.
In addition to the lawsuit filed Monday, Maryland Attorney General Brian Frosh filed suit last week asking a federal judge to replace Whitaker with Deputy Attorney General Rod Rosenstein.
Research contact: @jeremyherb